in the Interest of T.R., L.R., J.R., S.R., E.R., C.R. and V.R., Children ( 2022 )

Affirm and Opinion Filed June 29, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01032-CV
IN THE INTEREST OF T.R., L.R., J.R., S.R., E.R., C.R. AND V.R.,
CHILDREN
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-18-06935
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Myers
The children’s Mother appeals from the trial court’s judgment imposing
sanctions against her under section 156.005 of the Family Code ordering her to pay
Father’s attorney’s fees of $5,000. See TEX. FAM. CODE ANN. § 156.005. Mother
brings one issue on appeal contending the trial court abused its discretion because
the evidence did not support imposition of the sanction. We affirm the trial court’s
judgment.
BACKGROUND
Mother and Father were married and had seven children, six boys and one girl.
Four were their biological children and three were adopted, E., J., and L. The
children were between three and ten years of age when suit in this case was filed.
On January 18, 2019, the trial court signed the agreed divorce decree. The
decree named the parties joint managing conservators of the children with Mother
having the exclusive right to designate the children’s primary residence. The decree
required Father to pay Mother spousal support of $3,000 per month through January
1, 2022, and child support of $3,420 per month. The decree also stated,
It has been represented to the Court that there have been incidents
which could constitute family violence within the past two years that
has involved the children; however, the parties have put in safe-guards
within the Decree for the protection of the children and to prevent
family violence from occurring in the future. The parties believe that
all access to the children set out herein would not endanger the
children’s physical health or emotional welfare and would be in the best
interest of the children.
The safeguards in the decree included Father having limited supervised visitation
with the children that over time was increased to the standard possession schedule
without supervision and finally to the expanded standard possession schedule
without supervision. The decree also required Father to attend counseling from
October 1, 2018 to March 31, 2019. Father began seeing a counselor in April 2018.
On September 24, 2019, eight months after the divorce decree, Mother filed a
petition to modify the parent-child relationship. Mother stated that Father had “a
history or pattern of committing family violence during the two-year period
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preceding the date of filing of this suit,” and Mother alleged Father “is likely to
commit family violence in the future.” Mother requested that Father be denied
access to the children or that his access be supervised and that he be required to
undergo a “battering intervention and prevention program.”
On October 29, 2019, Father filed a motion for sanctions under section
156.005 of the Family Code.
On November 1, 2019, the associate judge held a hearing to determine
whether to impose temporary orders during the pendency of Mother’s petition to
modify. At the end of the hearing, the associate judge stated, “what’s going on with
the children is obviously concerning” but observed that the court “really doesn’t
have sufficient evidence to determine exactly what is going on.” The associate judge
ordered the parties to interview with Family Court Services, appointed an amicus
attorney, and ordered that a child-custody evaluation be performed. It does not
appear from the record that a child-custody evaluation was performed.
On June 16, 2020, the associate judge denied Mother’s motion for a
child-custody evaluation and ordered the parties to set the petition for modification
for trial. Mother nonsuited her petition the same day.
On June 24, 2020, the district judge held a hearing on Father’s motion for
sanctions. Besides testimony, the district judge also admitted into evidence the
reporter’s record of the November 1, 2019 hearing before the associate judge.
Father’s attorney presented evidence that his firm’s reasonable and necessary fees
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for representing Father in the modification proceeding were more than $114,000. At
the conclusion of the hearing, the district judge determined that Mother’s filing of
the petition for modification “was frivolous and designed to harass the father.” The
court ordered Mother to pay Father’s law firm $5,000. The district judge signed a
written order on the motion for sanctions on August 27, 2020.
Both Mother and Father filed requests for findings of fact and conclusions of
law with proposed findings of fact and conclusions of law. On October 15, 2020,
the trial court signed the proposed findings of fact and conclusions of law filed by
Mother. On October 29, 2020, the trial court signed Father’s proposed findings of
fact and conclusions of law as “The Court’s Adopted Findings of Fact.”
FAMILY CODE SECTION 156.005
The Family Code permits a party to petition for modification of an order that
provides for the appointment of a conservator, the terms and conditions of
conservatorship, or for the possession of or access to a child if (a) the modification
would be in the best interest of the child; and (b) “the circumstances of the child, a
conservator, or other party affected by the order have materially and substantially
changed since . . . the date of the rendition of the order.” FAM. § 156.101(a).
Section 156.005 of the Family Code provides: “[I]f the court finds that a suit
for modification is filed frivolously or is designed to harass a party, the court shall
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state that finding in the order and assess attorney’s fees as costs against the offending
party.” FAM. § 156.005.1
STANDARD OF REVIEW
We review the trial court’s award of attorney’s fees under section 156.005 for
an abuse of discretion. Kelsall v. Haisten, 564 S.W.3d 157, 164 (Tex. App.—
Houston [1st Dist.] 2018, no pet.). When the trial court makes findings of fact and
conclusions of law concerning the issue, we review the sufficiency of the evidence
of the findings. “If the evidence is sufficient to support the trial court’s findings and
conclusions, the trial court did not abuse its discretion.” Edwards v. Mid-Continent
Office Distribs., L.P., 252 S.W.3d 833, 836 (Tex. App.—Dallas 2008, pet. denied).
We review challenges to the sufficiency of the evidence to support findings
of fact under the same standards for reviewing evidence to support a jury’s verdict.
Walker v. Cotter Props., Inc., 181 S.W.3d 895, 899 (Tex. App.—Dallas 2006, no
1
In a suit for modification, the trial court has discretion to award attorney’s fees under section 106.002
or section 156.005. See FAM. §§ 106.002, 156.005. Under section 156.005, the attorney’s fees are
“assess[ed] as costs.” Id. § 156.005. Under section 106.002, fees are not awarded as costs. Instead, “the
court may render judgment for reasonable attorney’s fees and expenses and order the judgment and
postjudgment interest to be paid directly to an attorney.” Id. § 106.002(a) (emphasis added). A judgment
for fees and expenses under section 106.002 “may be enforced in the attorney’s name by any means
available for the enforcement of a judgment for debt.” Id. § 106.002(b). In this case, the trial court made
findings of fact consistent with section 156.005 by finding the petition to modify “was filed frivolously and
designed to harass Respondent.” But the court did not “assess attorney’s fees as costs” against Mother as
required by section 156.005. Instead, the court ordered Mother to pay “the fees, costs and interest” to
Father’s attorney and authorized Father’s attorney to enforce “this judgment . . . in the attorney’s own name
by any means available for the enforcement of a judgment for debt.” The order is a hybridization of the
two statutes because it cites section 156.005 and makes findings under that section, but the order awards
the fees in the manner authorized by section 106.002. The trial court may have erred by awarding a
judgment to Father’s attorney for the fees instead of assessing them as costs. However, neither party
objected in the trial court or complains on appeal of the trial court’s failure to follow section 156.005’s
requirement that the fees be assessed as costs. Therefore, any error by the trial court in the manner of
awarding fees is not preserved for appellate review and is waived on appeal. TEX. R. APP. P. 33.1(a)(1).
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pet.). In evaluating the legal sufficiency of the evidence to support a finding, we
must determine whether the evidence as a whole rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions. Columbia Med.
Ctr. Subsidiary, L.P. v. Meier, 198 S.W.3d 408, 414 (Tex. App.—Dallas 2006, pet.
denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).
Anything more than a scintilla of evidence is legally sufficient to support a
challenged finding. Walker, 181 S.W.3d at 899. When we review a finding for
factual sufficiency, we consider all the evidence and will set aside a finding only if
it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per
curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). Unchallenged
findings of fact are conclusive on appeal unless the contrary is established as a matter
or law or there is no evidence to support the findings. Toles v. Toles, 45 S.W.3d
252, 265 n.6 (Tex. App.—Dallas 2001, pet. denied) (citing McGalliard v. Kuhlmann,
722 S.W.2d 694, 696 (Tex. 1986)). We review a trial court’s legal conclusions de
novo. See Walker v. Anderson, 232 S.W.3d 899, 908 (Tex. App.—Dallas 2007, no
pet.). We evaluate those conclusions independently to determine whether the trial
court correctly drew each conclusion from the facts. Id.FINDINGS OF FACT AND CONCLUSIONS OF LAW
In this case, the record contains conflicting sets of findings of fact and
conclusions of law. On October 15, 2020, the trial court signed the findings of fact
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and conclusions of law prepared by Mother. The findings of fact included, “The
CPS file contained statements from caseworkers and supervisors that there was
concern of ongoing physical and emotional abuse by the father and paternal
grandmother against some of the children.” The conclusions of law included the
following:
8. Counsel for [Father] did not offer any evidence that [Mother’s]
pleadings were not filed in good faith.
9. Therefore, [Father] did not produce any evidence sufficient to
overcome the presumption that pleadings were filed in good faith.
....
14. Therefore [Mother] produced sufficient evidence to show there had
been a material and substantial change in circumstances by showing
that there were post-Decree allegations of physical abuse, emotional
abuse, and new disclosures of past physical abuse.
These findings and conclusions favor Mother.
Two weeks after signing Mother’s findings of fact and conclusions of law, on
October 29, 2020, the trial court signed “The Court’s Adopted Findings of Fact”
prepared by Father. The findings and conclusions in this document conflicted with
the court’s earlier signed findings and conclusions. The findings included,
“Mother’s assertion that CPS found ongoing physical and emotional abuse by Father
is completely false.” The conclusions of law included:
1. At the time [Mother] filed her Petition to Modify, there was no
evidence to support an allegation that the circumstances of either the
child or a person affected by the order had materially and substantially
changed since the Agreed Decree was rendered.
....
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7. The allegations brought by [Mother] were intended to deceive and
mislead the court.
....
13. The allegations in the Petition to Modify were based on events that
happened before the date of divorce. Therefore, such events and
allegations were no evidence to support an allegation that the
circumstances of either the child or a person affected by the order had
materially and substantially changed since the order was rendered.
14. Based on the testimony and evidence the Court finds that the
Petition to Modify Parent-Child relationship filed by [Mother] was filed
frivolously and designed to harass [Father], and sanctions should be
assessed pursuant to Texas Family Code Section 156.005.
These findings and conclusions favor Father.
When a trial court files a set findings of fact and conclusions of law that covers
the whole case and later files a second set of findings of fact and conclusions of law
that also covers the whole case and that are inconsistent with the first set of findings
and conclusions, we presume that the trial court intended for the second set of
findings and conclusions to substitute for the first set and intended for the second set
to control the disposition of the case. Waters v. Yockey, 192 S.W.2d 769, 769–70
(Tex. 1946); see also In re A.B.R., No. 04-17-00220-CV, 2018 WL 3998684, at *9
(Tex. App.—San Antonio Aug. 22, 2018, no pet.) (mem. op.) (second amended
findings of fact and conclusions of law replaced prior findings of fact and
conclusions of law, citing Waters). In this case, the trial court signed and filed the
findings and conclusions submitted by Mother and then signed and filed the findings
and conclusions submitted by Father. Therefore, we presume the trial court intended
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for the findings and conclusions submitted by Father to substitute for the earlier-
filed findings and conclusions submitted by Mother, and we do not consider the
findings and conclusions submitted by Mother.
WHETHER THE PETITION FOR MODIFICATION WAS FRIVOLOUS
“A ‘frivolous’ suit is generally understood to mean one that does not have a
reasonable basis in law or fact.” Thielemann v. Blinn Bd. of Trustees, No. 01-14-
00595-CV, 2015 WL 1247018, at *2 (Tex. App.—Houston [1st Dist.] Mar. 17, 2015,
no pet.) (mem. op.) (citing Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist.,
826 S.W.2d 124, 125 (Tex. 1991)); see generally TEX. R. CIV. P. 13 (authorizing
sanctions against party or party’s attorney for filing “groundless” pleading, defining
“groundless” pleading as having “no basis in law or fact”). In determining whether
sanctions are appropriate, the trial court must examine the facts available to the
litigant and the circumstances existing when the litigant filed the pleading. Kelsall
v. Haisten, 564 S.W.3d 157, 165 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Father asserted in his motion for sanctions that there had not been a material
and substantial change in circumstances since the divorce decree. Mother argues
she introduced evidence showing she acted in good faith in petitioning for
modification because the evidence showed the circumstances changed substantially
and materially after the trial court signed the divorce decree. In support of her
assertion, Mother relied on the reports of CPS employees and on the reporter’s
record from the November 1, 2019 hearing before the associate judge, both of which
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were admitted into evidence at the hearing before the district judge on Father’s
motion for sanctions.
The question before the district judge was whether Father proved that when
Mother signed the petition to modify on September 24, 2019, Mother lacked a
good-faith belief that conditions for the children had substantially and materially
changed after the trial court signed the divorce decree on January 18, 2019. The
question before this Court is whether the district judge abused its discretion by
finding Mother’s petition was frivolous or designed to harass Father.
The evidence showed that before the divorce decree, Father had physically
disciplined the children. Father would spank the children with a belt. In one
incident, a metal belt buckle struck the child E. in the head cutting her. On another
occasion, while Father was bathing E., he held her head underwater and then pulled
her back up. Father may also have bruised some of the children when disciplining
them. These incidents occurred before the divorce decree was signed, and the decree
enjoined the parties from using corporal punishment on the children.
Mother’s petition for modification sought to have Father denied all access to
all the children or have his access be supervised. Mother relied on documents in a
CPS investigation begun in February 2019 (the month after the divorce decree)
following a referral from the children’s counselor. Mother also relied on witnesses’
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testimony at the November 1, 2019 hearing before the associate judge. 2 Mother
argues she presented evidence at that hearing of a material and substantial change to
children’s circumstances.
The November 1, 2019 Hearing
The children’s counselor, Charissa Fry, began treating E., age 8 years old, on
February 13, 2019, after E. misbehaved in school including throwing chairs. E. was
homeless before being adopted by Mother and Father. Fry diagnosed E. as suffering
from PTSD because E. had experienced incidents in which she was in danger of
imminent bodily harm or death. Fry testified she believed E. was currently being
emotionally abused by Father based on E.’s “reenactment of the abuse in the play
therapy room, the unwillingness to discuss abuse at all, past or present.” Fry did not
explain what abuse E. reenacted during play therapy other than “maltreatment.” Nor
did Fry identify the perpetrator or date of the abuse E. reenacted. When Fry asked
E. about ongoing abuse, E. would either ignore the question or say “everything’s
fine.” E. told Fry that Father would ask E. about her therapy sessions and ask her
what they had discussed.
Fry testified that J., also 8 years old, was subjected to trauma and abuse. Like
E., J. was adopted by Mother and Father. J. would wet the bed a few nights a week.
Fry testified bedwetting beyond a certain age “usually involves trauma.” Fry stated
2
The transcription of the hearing does not contain the exhibits, which included the parties’ written
communications and photographs. We have only the witnesses’ descriptions of these documents.
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she believed J. had been traumatized and that he is continuing to suffer emotional
abuse from Father.
Fry testified that none of the four children she counseled would talk about
their experiences at Father’s house other than to say everything was fine. This
behavior led Fry to conclude that Father was emotionally abusing the children. Fry
testified, “Because in the course of domestic violence, children who are continually
exposed to an abuser who creates nurture and then abuse, they align with the abuser
to keep themselves safe in a situation they feel trapped in; and they keep the secret
and they show compliance.”
Fry also testified that during the summer of 2019, Father had forty days of
unsupervised visitation with the children, and the children did not report that
anything happened while staying with Father. Mother told Fry in August that some
of the boys had difficulty with the transitions at first. But, as Mother told Fry, “[a]s
the summer has gone, I felt that almost everyone has responded better each time.”
Mother told Fry, “overall the summer schedule went just fine.”
Besides providing counseling for the children, Fry also provided parent
coaching to Mother to help her care for seven young children. Fry stated she
exchanged many e-mails with Mother about the children.
Melanie Brooks, an investigator for CPS testified she investigated the report
from Fry about E.’s head being held underwater. This incident occurred before the
divorce. She testified E. disclosed there was another incident where E. was at
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Father’s house and Father told her to sleep face down in her pillow and Father pushed
E’s head into the pillow. Brooks did not know whether E. was able to breathe when
Father pushed her head into the pillow. This incident occurred shortly after the
divorce decree was signed. However, Brooks also testified that “any of the
allegations that’s happened since the date of divorce, those have all been ruled out.”
Concerning emotional abuse, Brooks said E. told her that Father said Mother
does not love her. Brooks asked E. what she thought, and E. said she thought both
Mother and Father loved her. The record does not show when Father told E. Mother
did not love her. Brooks also had concerns about the children based on the children’s
refusal to tell her anything currently happening, Father’s failure to answer her
questions directly, and because Father lied to her.
Kenisha Wilson, who works for CPS, testified the case was transferred to
CPS’s Family-Based Safety Services due to physical abuse by Father, namely, E’s
being hit in the head by the belt and “the allegations of her head being pushed down.”
Wilson said both of these incidents occurred before the divorce. Wilson testified
there were no allegations of physical abuse occurring after the divorce.
Wilson believed Father was emotionally abusing the children. E. started to
tell Wilson about having popcorn at the movie theater but stopped and told Wilson
she could not say anything further. When Wilson pressed E. to tell her, E. said, “Uh-
uh, we’re not supposed to talk about our feelings.” Wilson asked E. if she felt safe
in Father’s home, and she said, “Sometimes.” When Wilson asked her why she did
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not feel safe, she said, “Well, Dad gets crazy sometimes. . . . [I]f I tell you, then I’m
going to get in trouble with Dad. . . . He told us we’re not supposed to tell anyone
anything that goes on or we’ll get in trouble.” Wilson did not testify whether
Father’s instructions to E. not to talk about her feelings or about what happens at his
house was before or after the signing of the divorce decree. Wilson testified the
children’s answers to her appeared to be coached because they gave her “the exact
same answers” to her questions.
Mother testified at the hearing that circumstances had changed because the
children’s behavior had deteriorated following the signing of the divorce decree.
I observed two major shifts in the children’s behavior. Beginning in
about February of 2019, I started seeing the kids seeming much more
anxious, seeming withdrawn, seeming fearful about going to
counseling or about interacting with the CPS workers. They seemed
very preoccupied about the state of our family, about the calendar,
about future events. So that was the first shift that I observed. And
then beginning around August of this year, I noticed a major change in
particular with three of my older boys, [T.], [S.], and [J.]. They became
increasingly aggressive toward each other and toward me. They
became much more argumentative and combative. They were very
mistrusting. They would not let me hug and kiss them before bed
anymore. When they returned home from visits, they wouldn’t make
eye contact with me. And so I became very concerned.
Mother testified this shift in the children’s behavior began in February 2019, after
the children had visitation with Father.
Mother also testified about a bruise and scratch L. had on his chest. Mother
said L. told her he got the bruise and scratch when Father told him to go into “time
out”; L. forgot, and Father roughly picked up L. under his arms and carried him to
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time out. Mother testified L. told her he got the bruise and scratch when Father
picked him up.
Mother also testified that Father sent her an e-mail about one of the boys
stating, “I had to threaten a lot of things to get him to agree to be really good at your
house.” Father testified that the rest of the e-mail showed that what he threatened
was that he would not coach the child anymore if the child was not well-behaved at
Mother’s house.
Mother testified that the three adopted children, E., J., and L, were more
fearful and withdrawn before visitation with Father. She said, “They have a very
different personality leading up to visits with him.” Mother also testified about the
problems J. had after the divorce. She described how he was becoming more
aggressive and destructive of property and how she would have to restrain him. She
spoke to Father about J., and he told her he does not have any problems with the
children and that he cannot control the way they are at her house.
Mother also testified that Father was “very involved” with the children,
coached some of their sports teams, and attended their practices. Mother said the
children trust Father. She also said she has occasionally since the divorce asked
Father to come to her house to help with the children and he has done so.
Father’s counselor, Dr. Jeffrey Siegel, testified that Father “has . . . a positive
engaged relationship with [the children] and obviously enjoys being with them.” Dr.
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Siegel said he did not consider Father to be a danger to the children. Dr. Siegel also
testified about the progress Father had made in counseling:
[Father] was aware that [he was] . . . a very boundaried individual. He
was aware that he was a very structured, religious individual and was
coming to understand that there are -- there are times that maybe that
level of rigidity, that level of what we would call black-and-white
thinking or right/wrong thinking needs to have some flexibility.
I think he was much more willing to consider those things and, I think,
began to look at his own behavior more critically . . . developed what
we would call kind of the observing self, or the observing ego, where
he’s really kind of standing there and looking at what he’s doing and
asking himself why.
The former nanny Father used for the children after the divorce was asked
how she would describe Father as a father: “Exceptional. Exceptionally amazing.
He was, I mean, very caring. He spent tons of time with the kids. Just loving.” She
explained Father disciplined the children by putting them in “time out” or by
threatening to take away their “screen time.” Father also encouraged non-screen
activities such as going to the park or conversing together. She testified Father was
not physically aggressive with the children and the children were not aggressive with
him or each other. The nanny never heard Father tell the children anything
disrespectful about Mother or anything that would cause them to be disrespectful
towards her.
The nanny also testified about the popcorn incident E. refused to tell Wilson
about. The nanny said she was at the movie theatre with the children and bought
them some popcorn. E. got a popcorn kernel stuck in her throat and started gagging.
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The nanny patted her on the back. As they walked out of the movie theater, E. told
the nanny she thought she was going to throw up. The nanny texted Father about
the incident, and he drove immediately to the theater with a change of clothes for E.
and took the children home. The nanny testified she knew of no reason why Father’s
possession of the children should be supervised. She said that even though she no
longer worked for Father, she wanted to testify because she felt strongly about Father
being a good, fit parent.
Father’s girlfriend for the six months before the hearing testified she is an
attorney and dance teacher. As a dance teacher, she sees the parents of many
children. She said she had not seen Father be aggressive with the children or them
be aggressive with each other or with him. She said, “He’s kind, he’s nurturing, he’s
protective. He’s very affectionate with them to a degree that I don’t think most dads
are. He’s playful, he’s energetic.” She said, “He is probably one of the best dads
that I have ever encountered.” She has not seen Father “engage in any kind of threat
to the children, verbally abuse them, or try to control them.” She said Father
encourages the children to be respectful to Mother and to do what Mother says. She
said she did not see Father try to control what the children said.
Father testified that there were things he did before the divorce that he was
sorry for and apologized for. He said he knew J.’s behavior was worse, but that the
other children “have improved dramatically.”
At the end of the hearing, the associate judge said,
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After hearing the evidence and reviewing all the documentary evidence,
obviously what’s going on with the children is concerning. At this time,
the Court really doesn’t have sufficient evidence to determine what
exactly is going on. There’s a lot of different things in play here, and
it could be a combination of a number of different things.
But the Court is concerned about it, and I’m going to order several
different things to be put into motion to get the Court more information.
The associate judge ordered Mother to arrange for Family Court Services to
interview the children and for the report to be ready at the time of the next hearing
in December. 3 The associate judge also appointed an amicus attorney for the
children and ordered a child-custody evaluation be performed. The record shows no
child-custody evaluation was performed, and the associate judge later denied
Mother’s request for a child-custody evaluation.
The CPS Reports
Mother also cites as evidence the reports of CPS employees from February 15
through July 1, 2019. CPS’s investigation began after Fry reported E.’s outcry that
Father had held her underwater while bathing her. After reporting on what E. and
the parents had told the investigators, Brooks’s report for February 15, 2019, states,
“[E.] did not make an outcry of recent abuse or neglect. The allegations reported all
occurred in Houston and years ago. Since then the father . . . has received court
appointed counseling and has partially supervised visitation with the children.” On
February 21, 2019, the report stated, “Safety Assessment Discussion: The children
3
The report is not part of the record before this Court.
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are safe at this time.” There was no entry in the report under the heading “Current
Danger Indicators.”
Brooks’s report on February 21, 2019, states she interviewed L. L. told her
“what he doesn’t like about [Father’s house] is that he doesn’t let him do [iPad] that
much, only like 2 minutes.” Brooks said L.’s “behaviors and actions were typical of
children of the same age group.” Brooks said she did not see any signs of abuse or
neglect on L.
Brooks’s report on February 21 also states she interviewed J. Concerning life
at Father’s house,
[h]e stated dad’s house is fun because he lets him and [S.] make lunch,
he has basketball goals, he lets them stay up to 9 or 10 p.m. and wake
up late. . . . He stated there is not anything bad that happens at dad’s
house. He stated no one is hit or spanked at dad’s house. . . . He stated
he is not scared of anyone or anything in his mom or dad’s home.
Brooks stated, “[J.’s] behaviors and actions were typical of children of the same age
group,” and Brooks did not see any signs of abuse or neglect on J.
On April 12, 2019, Brooks interviewed the children, including E. Brooks
reported:
[E.] pulled me into her room and showed me her toys and then I thanked
her and told her I was going to go. Then she said she wanted to show
me her brothers[’] toys. It seemed she didn’t want me to leave so I
asked her was everything ok. While in her brother’s room she told me
her dad always asks her what CPS, Charisa [Fry] and mommy say and
if she says the wrong thing he gets mad. She also said her dad tells her
that her mom doesn’t love her. She said she thinks both her mom and
her dad love her. I asked her does she like living with mommy and
daddy or just mommy or just daddy. She stated she likes living with
her mommy but its ok with her if she see’s her dad sometimes. I
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thanked her for letting me know how she feels. She asked me why does
her dad always say mommy doesn’t love her. I asked her what does
she believe is true. She stated she thinks her mommy loves her. I told
her well if someone tells you any different don’t argue with them but
just remember what you already know in your heart is true, which is
what? And she stated, that my mommy loves me. I told her that’s right
and don’t forget it. I asked her was there anything else she wanted me
to know. She stated no.
As Brooks was leaving, she spoke to Mother:
I explained to her that [E.] expressed her dad was telling her that
mommy doesn’t love her. She stated she’s not surprised. She stated
she knows that the children will eventually see him for who and what
he is and so will the world. She stated no one believed her at first. She
stated he doesn’t like that he can’t control [E.] like he can control the
rest of them. She stated this just sucks because there’s not anything she
can do about it. She stated he is textbook emotionally abusing those
children.
On May 20, 2019, Brooks interviewed the children about the bruise and
scratch on L’s chest.
He [L.] stated he was coming down the stairs and he was almost at the
end and his dad grabbed him. He stated when his dad grabbed him he
scratched him on accident on his chest. He stated his dad told him not
to go upstairs because his brother was sleeping and he got a warning.
He stated nothing else happened. He stated he got in a little trouble but
he just got a warning. He stated he does not think anyone would hurt
him. He stated he likes both mom and dad’s home.
The other children (except for E. who was not home at that time) told Brooks either
they did not know L. was scratched or they did not know how he got scratched.
Father told Brooks L. got the scratch when he was running on the treadmill, looked
away, and fell down on his chest. Father said he could not have scratched L. by
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picking him up because he does not have any fingernails and he did not pick him up
hard enough to make a scratch.
On May 30, 2019, Brooks reported,
The 3 children adopted appear to be singled out by father and there are
serious concerns about PHAB [physical abuse] that is aimed at these
children. There are also serious concerns about father being controlling
and that when the parents were together there is concern that the
children witnessed this. Children need therapy and parents are not able
to get kids in therapy.
On June 19, 2019, Brooks reported, “Safety Assessment Discussion: The
children are safe.” That report also states: “PHAB—Reason to Believe.” The report
then describes E.’s outcries of being hit with the belt by Father, his holding her
underwater, his spanking her and his “[tying] her to something in mom’s room,” all
of which happened before the divorce.
On August 6, 2019, Kenisha Wilson reported,
[Mother] and the children were attending counseling before the case
came in. . . . The counselor states the mother and children have made
progress and she does not have any concerns at this time. [Mother] is
protective of the children and the father attends counseling as well to
address his anger management. There ha[ve] not been any outcries of
abuse since the case came into care.
On August 13, 2019, Wilson spoke to Mother:
I informed [Mother] that the agency was looking to close her case if the
counselors did not have any concerns and after I spoke with everyone
in the home. [Mother] stated ok. I asked if she had any concerns and
she stated the only concern she has is [Father]. She stated [Father] is
no longer physically abusing the children at this moment but he is still
emotionally abusing them. [Mother] informed me when the children
went to a visit last month with their father they went to the movies. She
stated [E.] told her she choked on a piece of popcorn and threw up in
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the theatre. [Mother] stated [E.] told her [Father] yelled at her and told
her it was all [E.]’s fault they got a divorce. [Father] also stated [E.] is
the wors[t] kid ever and she is the reason they’re all in this mess
(referring to [CPS] and divorce.) [Father] also told [E.] if she tells her
mom, [CPS], or her counselor then he will make her clean the entire
house by herself and he will make her do all of the laundry. [Mother]
stated [E.] came in the room crying to tell her everything and [E.] asked
her not to tell anyone because her dad is going to punish her. [Mother]
stated she doesn’t know what to do at this point because she keeps
records of everything but it seems as though the only way visitation
could be supervised or for this to stop is if something else physically
happens to the children. [Mother] stated he tells all of the kids not to
listen or talk to their mom, counselor, or CPS because they’re trying to
take the children away from him. She stated [Father] manipulates the
children and she believes he is building them back up again to start
physically abusing them again if he has not already started and the
children are just too afraid to say anything. I asked [Mother] if she
knew why he was specifically targeting [E.] and she stated she’s not
sure but she believes it’s because [E.] and her older brother w[ere] the
most abused in their home and they would be considered as the weakest.
She stated [J.] has fetal alcohol syndrome and he cannot speak as well
as the others. She also stated [E.] was the most abused and she was in
5 different foster homes by the age of 2. [Mother] stated she asked
[Father] multiple times if he wanted to just give the children back
because he continued to abuse them and [Father] would tell her that he
loved the children and he wanted the best for them by giving them tough
love. [Mother] stated the children were already in a bad situation and
for them to leave and come to an even worse situation. She stated she
just wants [Father] to get the help they need so they can all move
forward. She stated she is in counseling and she goes to a domestic
violence group to help her heal. I told [Mother] I would speak to the
supervisor in regards to her having concerns about the emotional abuse.
On August 30, 2019, Wilson reported,
There are concerns that [Father] is emotionally abusing the children. It
was discussed if [Father] does not continue counseling then it could be
a possibility he could become angry and lash out on the children. There
is a court order in place and the children are required to go to [Father’s]
home every Thursday–Sunday. However, everyone is completing
services and there ha[ve] not been any outcries of physical abuse.
–22–
Wilson also stated, “The case will be submitted for closure because [Mother] is being
protective and there ha[ve] not been any recent outcries of abuse. The abuse that
was mentioned occurred years ago before the case was called in.”
On September 23, 2019, the day before Mother filed the petition for
modification, Wilson reported that she spoke to Mother and asked Mother if she had
any concerns for the children.
She stated the children ha[ve] been out of control within the last two
months. She stated the boys are telling her that they hate her, it’s her
fault for the divorce. The boys have also told her she is going to be
homeless because dad pays for everything and she doesn’t have a job.
She stated the children do not talk to her and they now tell her they do
not want to go to counseling. She stated the counselor told her the
children do not open up anymore in their sessions. She stated [Father]
is telling them these things because no child is going to randomly come
up with those thoughts. I told her I did agree that someone is coaching
the children. She stated her attorney is filing to modify the custody
agreement to limit visitations for this reason. She stated [Father] is not
spanking the children but he is still manipulating them and trying to get
them to be against her for whatever reason. I told her it is difficult to
speak with him because I do not want the children to suffer but I did
need to address these concerns. She stated she just wants [everything]
to stop because she use[d] to have a close relationship with the children
and now she does not.
Wilson also spoke to the children. She described E.’s responses:
I asked if she felt safe at her dad’s house and she stated sometimes. I
asked why she only felt safe sometimes and she stated because her dad
gets a little crazy sometimes. I asked what happens when she gets in
trouble at her dad’s house. She stated her dad doesn’t like when they
tell other people things because then they’ll get in trouble. I told [E.]
what we speak about will stay between us. [E.] was very hesitant. She
stated her dad yells a lot and he makes them do wall sits and squats. She
stated he is not allowed to spank them anymore but he really wants to
spank them. She stated her mom doesn’t let her dad step one foot in
the house and he was being dramatic when he came to the house. . . . I
–23–
asked [E.] if anyone ever tells her bad things and she stated her dad told
her he has tried to apologize to their mom a lot of times but she doesn’t
accept his apology. She stated her dad has apologized to her for hurting
her. I told her that was a good thing. It appeared as though [E.] wanted
to tell me more but she stated her father gets mad when she talks about
her feelings and when they do they get in trouble.
The June 24, 2020 Hearing
At the June 24, 2020 hearing on Father’s motion for attorney’s fees under
section 156.005, the district judge asked the amicus attorney for the children her
position. The amicus attorney stated,
Judge, when I got in, in December, my understanding is I was instructed
to investigate concerns for the children. And I did that. When we came
back, there was report from Family Court Services that is on file with
the Court.4 And I ask the Court to take judicial notice with that. But
the concern was just saying that statements from the children were that
they didn’t have any concerns with their dad. But there were concerns
regarding the mom. And so everything kind of flowed from there, in
terms of what happened next. So I just said: This is a case with seven
children. They need both mother and father. And there is just nothing
that I’ve seen that was concerning of father.
Changed Circumstances
Mother argues she proved that when she filed the petition to modify on
September 24, 2019, the children’s circumstances had materially substantially
changed since the trial court signed the divorce decree. See FAM. § 156.101(a)(1).
Mother argues she presented evidence that Father physically and emotionally abused
the children after the divorce decree was signed. The trial court found:
4
This report is not in the appellate record.
–24–
28. Mother’s assertion that CPS found ongoing physical and emotional
abuse by Father is completely false.
29. Other than the 2016 incident, all other allegations by the Mother
against the Father were “ruled out” by CPS. All of her claims of alleged
on-going abuse were ruled out.
30. As to current allegations, the CPS Report found “[n]one of the other
children in the home made an outcry of abuse or neglect.”
The district judge’s conclusions of law included:
1. At the time Petitioner filed her Petition to Modify, there was not
evidence to support an allegation that the circumstances of either the
child [sic] or a person affected by the order had materially and
substantially changed since the Agreed Decree was rendered.
...
3. Petitioner’s Petition to Modify lacked factual and legal support at the
time of filing.
At the November 1, 2019 hearing before the associate judge, all the witnesses
except Mother testified they did not know of any physical abuse to the children by
Father occurring after the divorce decree.
The only incidents of physicality occurring after the divorce were Father’s
holding E.’s head into the pillow and Father’s picking up L. under the arms, bruising
and scratching him. Concerning the pillow incident, Brooks testified she did not
know whether E.’s breathing was impaired by Father’s action, and there is no
evidence of how long he held her head in the pillow. Brooks testified that allegations
occurring after the divorce “have all been ruled out,” which the court could interpret
as meaning CPS had determined the pillow incident did not constitute physical
abuse. As for Father bruising and scratching L.’s chest, the evidence of that incident
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is Mother’s testimony, and Mother’s and L’s statements to the CPS employees who
included Mother’s and L’s statements in their reports. Although Mother presented
photographs of the bruise and scratch to the associate judge at the November 1, 2019
hearing, it does not appear those photographs were in evidence before the district
judge at the hearing on June 24, 2020. There was no evidence of whether the bruise
and scratch caused substantial pain to L. or whether they impaired him or limited his
activities. The district judge could have concluded neither incident constituted a
material and substantial change of the children’s circumstances.
Brooks reported on May 30, 2019, that there were “serious concerns” about
physical abuse of the three adopted children, E., J., and L., but the report does not
indicate that these children had been physically abused after the divorce. Other
statements by Brooks and Wilson indicate there was no physical abuse of the
children after the divorce decree.
Concerning emotional abuse, Fry, Brooks, Wilson, and Mother testified at the
November 1, 2019 hearing that they had concerns there was ongoing emotional
abuse by Father. However, none of the witnesses specified what conduct by Father
constituted emotional abuse. They testified there were signs that emotional abuse
had occurred, including the children’s refusing to speak ill of Father and J.’s
bedwetting. J.’s bedwetting occurred before the divorce, and the district judge could
conclude its continuance after the divorce was not a changed circumstance. Brooks
and Wilson also testified and the CPS reports show statements by the children of
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what Father had told them. None of the witnesses testified that any particular act or
statement by Father constituted emotional abuse of a child.
The district judge could conclude that without evidence identifying the
conduct by Father constituting emotional abuse and the date of that conduct being
after the divorce, Mother failed to prove Father emotionally abused the children after
the divorce. Although Mother testified to a change in the children’s behavior after
the divorce that she attributed to Father’s conduct, the trial court was entitled to find
her testimony not credible. None of the witnesses’ testimony or the CPS reports that
are independent of statements by Mother show marked changes in the children’s
behavior. The trial court could also have concluded that any change in the children’s
behavior was not a material or substantial change.
We conclude Mother has not shown the trial court abused its discretion by
determining the children’s circumstances had not substantially and materially
changed since the divorce.
Petition Frivolous or Designed to Harass
Mother argues that even if she failed to prove the children’s circumstances
had changed, the trial court abused its discretion by imposing sanctions for filing the
petition for modification because Father failed to prove she filed the petition in bad
faith. Section 156.005 does not require the trial court to find the petition was filed
in “bad faith.” Instead, the statute requires the trial court to find the “suit for
modification is filed frivolously or is designed to harass a party.” FAM. § 156.005.
–27–
A suit is frivolous if it lacks a reasonable basis in the law or in the facts.
Kelsall, 564 S.W.3d at 165. In this case, the trial court could conclude Mother knew
her petition lacked a reasonable basis when she filed it. The only evidence of alleged
physical abuse Mother presented occurring after the divorce was Father’s pushing
E.’s head into the pillow and his causing a bruise and scratch on L.’s chest. In the
pillow incident, there was no evidence that E.’s breathing was impaired or that she
suffered any lasting effects from the incident. In the bruising incident, there was no
evidence that L. was impaired by the incident or suffered any lingering effects. The
district judge could conclude Mother had no reason to believe when she filed her
petition that these incidents materially or substantially changed either child’s
circumstances.
As for emotional abuse, the trial court could conclude that Mother presented
no evidence of a material and substantial change to the children’s circumstances
from any emotional abuse. Although the CPS employees testified and reported they
had concerns about ongoing emotional abuse by Father, the trial court could
conclude that their testimony and reports did not demonstrate how the children’s
circumstances had changed as a result of any abuse. The three adopted children, E.,
J., and L. (the only children discussed at length in the testimony and CPS reports),
all had problems with which they were coping before the divorce. E. had been
homeless before being adopted, and J. and L. were born with fetal alcohol syndrome.
The district judge could conclude Mother failed to present evidence showing their
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circumstances had materially and substantially changed since the divorce, and that
she had no evidence other than her own speculation and the conclusory statements
of Fry and the CPS employees that any change was due to emotional abuse by Father.
In this case, the district judge could reasonably conclude that Mother’s petition was
legally or factually groundless.
We conclude Mother has not shown the trial court abused its discretion by
awarding Father his attorney’s fees under section 156.005. We overrule Mother’s
issue on appeal.5
CONCLUSION
Having concluded the trial court’s decision to grant Father’s motion under
section 156.005 was not an abuse of discretion, we affirm the trial court’s judgment.
/Lana Myers//
201032f.p05 LANA MYERS
JUSTICE
5
“The mere fact that a trial judge may decide a matter within his discretionary authority in a different
manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion
has occurred.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). Thus, opposing
rulings can both be within a trial court’s discretion. Although we have concluded that the trial court’s ruling
in this case awarding Father $5,000 of his attorney’s fees under section 156.005 was not an abuse of
discretion, this opinion should not be read as holding that the trial court’s denial of Father’s motion would
have been an abuse of discretion.
–29–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF T.R., L.R., On Appeal from the 255th Judicial
J.R., S.R., E.R., C.R. AND V.R., District Court, Dallas County, Texas
CHILDREN Trial Court Cause No. DF-18-06935.
Opinion delivered by Justice Myers.
No. 05-20-01032-CV Justices Osborne and Nowell
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 29th day of June, 2022.
–30–